Mrs. Fatou Bensouda:

There are quite a few questions. I will repeat upfront how the ICC can or cannot intervene, and probably that will take most of these questions away. We cannot intervene in a state that is not a party to the ICC. That is why we cannot look at Sri Lanka, Syria and China, all of which were mentioned by Deputy Crowe, unless there were to be a referral by the UN Security Council for these cases to take place. I want to be clear about the UN Security Council referral. Even where we have a referral from the UN Security Council, it is not automatic that we take the case because always we have to assess whether this is really a case that should be tried by the ICC. Our subject matter jurisdiction is clear. War crimes, crimes against humanity, genocide and, probably later, crime of aggression are the crimes that we look at.

When we do our assessment in the court in terms of selection of cases, we make an assessment as to gravity of the crimes that have been committed and also whether the ICC's invention will be against the interests of justice. When I talk about "gravity", I am talking not only about the numbers, but about the nature, scope and scale of the crime and the impact that the crime will have on the region. All of this assessment is done during the preliminary analysis phase to warrant the ICC's intervention. That is why sometimes it is difficult to understand why the ICC is investigating a matter in one place and, for example, not investigating body parts being traded in China. It has to fall within how we select and how we can investigate.

With respect to the selection of cases, I will mention, for example, Democratic Republic of Congo, DRC, to illustrate it better. When the Democratic Republic of Congo requested the ICC's intervention, it was a time when there was much trouble going on in various parts of the Democratic Republic of Congo. As the committee will be aware, for the ICC it would be difficult to start investigating everywhere. We decided to look at where were the gravest crimes being committed in the Democratic Republic of Congo. At that time, the Ituri region of the DRC was the place where by far the most crimes were being committed and we decided to phase our investigations, and started with Ituri. That is why we ended up with Lubanga. At that time, it was Lubanga, and Germain Katanga and Mathieu Ngudjolo Chui on the other side, who were involved in the conflict.

Contrary to what my office is being accused of, we investigated Lubanga on the one side but we also investigated Katanga and Ngudjolo on the other. These were the warring factions at the time and they were both transferred, once we were done with our investigations and charged them, by the DRC Government to the court. Their trials have taken place. Lubanga has been convicted, Mathieu Ngudjolo has been acquitted and Katanga's judgment is due next year. This is merely to show how we go about selecting the cases. We go for the gravest crimes where they are taking place and then we try to phase our investigations. At present, we are concentrating more in Kivu than in Ituri, where we have seen that the scale of crimes has reduced. It is more serious in another part of DRC and that is where we are focusing.

Also, with respect to the Lord's Resistance Army, for instance, we were criticised for concentrating on the Lord's Resistance Army, not on the Uganda People's Defence Force, UPDF, which is the army of the government. When we made the assessment, however, the crimes that the Lord's Resistance Army was committing were far greater and more serious than those the UPDF also was alleged to have committed, and we started with the Lord's Resistance Army and brought charges against the top commanders of that army. That is mainly how we tried to select the cases.

Deputy Crowe referred to whether it is too political to take a case. That should not be a criteria. In fact, that is not a criteria to take cases by my office. It is clear what is my mandate. It is clear what the statute tells me to do - how to go about the cases, what are the cases and what are the considerations for taking the cases - and it does not involve political considerations. If the office were to start having those considerations - to bring or not to bring a case - the credibility of the institution would be gone. Of course, we are not insensitive that we are working in a political environment, and, unfortunately, whatever we do will be perceived as political, but we should stay on the ball that this is a judicial institution that was set up to try crimes. It is clear what should make me take or not take a case. It does not involve political considerations.

That last issue Deputy Crowe raised was Gaza. I would remind him that in 2009 the Palestinian Authority made a declaration accepting the ICC jurisdiction. This was before the UN General Assembly vote of last year. If one looks at the ICC statute, it refers to a state making a declaration accepting the ICC's jurisdiction.

At the time we decided that, because we assessed that the declaration last year did not fulfil all the legal requirements of the statute, we could not therefore take the case forward. If the status of Palestine changes, we will then be able to examine it.

Last year, there was a vote by the UN General Assembly recognising Palestine as a state. However, we still feel that this recognition does not change the earlier declaration that was made because it is coming after the fact. We cannot just pick up the declaration now and run with it because we do not feel that the legal deficiencies of that declaration have been changed by the vote that was taken.